v. ICAO

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               March 4, 2021

                                

No. 20CA0732, Fisher v. ICAO — Labor and Industry —
Workers’ Compensation — Benefits — Physical Impairment
Ratings

     Subsections (3)(a)(I) and (3.7) of section 8-42-101, C.R.S.

2020, state that, in workers’ compensation cases, physical

impairment ratings “shall be based on” the revised third edition of

the American Medical Association’s Guides to the Evaluation of

Permanent Impairment. In this opinion, a division of the court of

appeals considers the question whether the phrase “shall be based

on” the revised third edition of the Guides means that a doctor is

barred from using an evaluative process to determine an

impairment rating that is not described in the Guides. The division

answers the question “no.”
COLORADO COURT OF APPEALS                                        

Court of Appeals No. 20CA0732
Industrial Claim Appeals Office of the State of Colorado
WC No. 5-068-151


Kerry Fisher,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and State of Colorado
Department of Corrections,

Respondents.


                              ORDER AFFIRMED

                                 Division I
                    Opinion by CHIEF JUDGE BERNARD
                   Rothenberg* and Taubman*, JJ., concur

                          Announced March 4, 2021


Hassler Law Firm, LLC, Stephen M. Johnston, Pueblo, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Philip J. Weiser, Attorney General, D. Clay Thornton, Senior Assistant Attorney
General, Denver, Colorado, for Respondent State of Colorado Department of
Corrections


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1    The American Medical Association publishes Guides to the

 Evaluation of Permanent Impairment that have been used over the

 years by doctors in workers’ compensation systems to evaluate and

 to describe patient impairments in terms of percentages of total

 disability. Ellen Smith Pryor, Compensation and a Consequential

 Model of Loss, 

, 798 n.42 (1990). The Guides are

 focused on “specifying methods of measurement and the

 assignment of a single percentage for a given impairment.” 

 There are different editions of the Guides — the most recent edition

 is the sixth, see AMA, AMA Guides to the Evaluation of Permanent

 Impairment, Sixth Edition: Hardcover, https://perma.cc/6JZ6-6T7U

 — and there are “significant differences among” them, “not only in

 emphasis of certain areas, but also as a reflection of the latest

 consensus in medical science within its subject matter.” Litchfield’s

 Case, 

, 254 n.7 (Mass. App. Ct. 2014).

¶2    The revised third edition of the Guides is mentioned in section

 8-42-101, C.R.S. 2020, of Colorado’s workers’ compensation

 statutes, specifically in subsections (3)(a)(I) and (3.7). These

 subsections address one aspect of how a doctor should evaluate a

 work-related injury of a joint to determine the extent of the joint’s


                                    1
 impairment, which, in turn, is used to determine the level of

 compensation that the worker will receive.

¶3    As is pertinent to our analysis, subsection 101(3)(a)(I) states

 that “impairment rating guidelines . . . shall be based on the revised

 third edition of the [Guides] in effect as of July 1, 1991, and medical

 treatment guidelines and utilization standards.” Subsection

 101(3.7) is similar: “On or after July 1, 1991, all physical

 impairment ratings used under articles 40 to 47 of this title shall be

 based on the revised third edition of the [Guides], in effect as of July

 1, 1991.”

¶4    In this appeal, we must address a question of statutory

 interpretation: Does the phrase “shall be based on the revised third

 edition” of the Guides mean that a doctor is barred from using an

 evaluative process to determine an impairment rating that is not

 described in the Guides’ revised third edition? For reasons that we

 set out below, we answer this question “no.”

¶5    This statutory interpretation question is raised by claimant,

 Kerry Fisher, who seeks review of a final order of a panel of the

 Industrial Claim Appeals Office. The order upheld the decision of

 an administrative law judge, who assigned him a scheduled


                                    2
 impairment rating of thirteen percent for his injured left knee. We

 affirm.

                            I. Background

¶6    The facts of this case are undisputed. Claimant worked as a

 correctional officer for the Colorado Department of Corrections. In

 December 2017, he suffered an injury to his left knee while walking

 up some stairs. The department admitted that claimant injured his

 knee while he was on duty.

¶7    Claimant’s authorized treating physician decided that he was

 at maximum medical improvement as of early January 2019. The

 physician also decided that the injury to his knee was permanent.

 Using a method known as “normalization,” which we will describe

 shortly, the physician calculated that the net impairment was

 thirteen percent of the lower leg. The department filed a final

 admission of liability based on the maximum medical improvement

 date and the impairment rating.

¶8    Claimant thought that his impairment rating should have

 been higher. He challenged the physician’s methodology of

 “normalizing” the impairment to his left knee because it had not

 been based on the Guides’ third edition.


                                   3
¶9     When describing this methodology, the physician explained in

  a deposition that “normalization” is a process in which doctors

  compare the range of motion of a patient’s uninjured joint — in this

  case, claimant’s right knee — with the range of motion of the

  patient’s injured joint — in this case, claimant’s left knee. The

  range of motion in the uninjured joint is considered to be the

  baseline. Once the range of motion in both joints is determined, the

  doctor then subtracts any impairment to the range of motion of the

  uninjured joint from the impairment to the injured joint to reach

  the final impairment figure.

¶ 10   The practice of normalization is summarized in a Desk Aid

  published by the Department of Labor and Employment, Division of

  Workers’ Compensation. Dep’t of Lab. & Emp., Div. of Workers’

  Comp., Desk Aid #11, Impairment Rating Tips (July 2020),

  https://perma.cc/G9KX-Q2ZH. As is pertinent to our analysis, in

  addition to describing the normalization process, the Desk Aid’s

  discussion of “Rating of Extremities Using Contralateral Joint/

  ‘Normalization’” makes several other points.

           Using the uninjured joint for comparison purposes may be

            “a better representation of the patient’s pre-injury state


                                     4
            than . . . [the] population norms” described in the revised

            third edition of the Guides. 

           The revised third edition of the Guides “has little

            commentary on” normalization, while the fifth edition and

            the Division of Labor “consider it reasonable to compare

            both extremities [ — i.e., normalization — ] when there are

            specific conditions which would make the opposite,

            non-injured extremity serve as a better individual baseline.”

            

           An evaluating doctor should not use normalization if the

            opposite joint “has a known previous injury because that

            joint may not reflect the ‘normal’ [range of motion] for

            that individual.” 

¶ 11   The revised third edition of the Guides — the edition

  mentioned in subsections 101(3)(a)(I) and 101(3.7) — does not

  address normalization. But, as we mentioned above, the fifth

  edition discusses it, and, according to the physician, the

  normalization process, as outlined in the Desk Aid, has been taught

  to doctors in workers’ compensation accreditation courses for at

  least the last decade.


                                     5
¶ 12   In claimant’s case, normalization reduced his range of motion

  impairment by nine percentage points because he had pre-existing

  degenerative arthritis in his knees.

¶ 13   When considering this case, the administrative law judge

  noted that panels of the Industrial Claim Appeals Office had already

  rejected numerous challenges to normalization and to the Desk Aid,

  as had a division of this court in Kurtz v. Industrial Claim Appeals

  Office, (Colo. App. No. 11CA2561, Oct. 18, 2012)(not published

  pursuant to C.A.R. 35(f)). The judge then rejected claimant’s

  challenge to the validity of the Desk Aid, concluding that

  normalization was a legitimate process and that its use did not

  violate any mandate in subsections 101(3)(a)(I) and 101(3.7). The

  judge therefore awarded claimant benefits based on the physician’s

  determination that the claimant’s left knee was thirteen percent

  impaired. The reviewing panel affirmed the judge’s order.

                       II. General Legal Principles

¶ 14   We uphold a judge’s factual findings in a workers’

  compensation case if they are supported by substantial evidence in

  the record. § 8-43-308, C.R.S. 2020; Kieckhafer v. Indus. Claim

  Appeals Off., 

. “However, we review de novo


                                    6
  questions of law and of the application of law to undisputed facts.”

  Winter v. Indus. Claim Appeals Off., 

.

  Consequently, if a panel’s decision misconstrues or misapplies the

  law, it does not bind us. Paint Connection Plus v. Indus. Claim

  Appeals Off., 

 (Colo. App. 2010). Because the

  underlying facts are undisputed in this case, we review the panel’s

  application of the law to the facts de novo.

¶ 15   We also review the panel’s interpretation of the statutes at

  issue in this case de novo. Lobato v. Indus. Claim Appeals Off., 

 (Colo. 2005). When interpreting a statute, we must

  determine and give effect to the legislature’s intent. Davison v.

  Indus. Claim Appeals Off., 

 (Colo. 2004). If the

  statutory language is clear, we interpret the statute according to its

  plain and ordinary meaning. Specialty Rests. Corp. v. Nelson, 

 (Colo. 2010).

                                III. Analysis

¶ 16   Claimant contends, as he did at the previous stages of his

  case, that (1) subsections 101(3)(a)(I) and 101(3.7) state that

  impairment ratings “shall be based” on the revised third edition of

  the Guides; therefore (2) doctors cannot employ the process of


                                     7
  normalization because it is not mentioned in the revised third

  edition; (3) even though normalization is discussed in the Desk Aid,

  doctors nonetheless cannot use the process because the Desk Aid

  “is not law”; and, as a result, (4) the Division of Workers’

  Compensation “has overstepped its authority and changed the

  calculation of extremity ratings inconsistently with the law.” We

  disagree for the following three reasons, and we therefore conclude

  that the panel did not err when it affirmed the judge’s order.

¶ 17   First, the plain language of subsections 101(3)(a)(I) and

  101(3.7) did not bar the physician from employing the process of

  normalization. To remind the reader, both subsections provide that

  impairment ratings “shall be based on” the revised third edition of

  the Guides. § 8-42-101 (emphasis added).

¶ 18   The use of the word “based” is critical to interpreting

  subsections 101(3)(a)(I) and 101(3.7). As a verb, it means “to find a

  foundation or basis for: to find a base for” and “to make, form, or

  serve as a base for.” Merriam-Webster Dictionary,

  https://perma.cc/5SP2-LPZ5. Among the many definitions of the

  noun “base,” the most relevant to this case are: “a main ingredient”;

  “a first or bottom layer of something on which other elements are


                                     8
  added”; “the fundamental part of something”; and “the starting

  point or line for an action or undertaking.” Id.

¶ 19   So, when the legislature stated that impairment ratings shall

  be “based on” the revised third edition of the Guides, it meant that

  the revised third edition is the starting point, not the exclusive

  fount, of impairment rating methodology. By employing “based on,”

  instead of using a more limiting word such as “only,” the legislature

  made clear that doctors should have some leeway and discretion

  when determining a patient’s final impairment rating. When viewed

  from this perspective, we can see that the legislature intended the

  revised third edition to be the foundation upon which a doctor can

  begin to develop an impairment rating.

¶ 20   The Kansas Supreme Court reached the same conclusion in

  Johnson v. U.S. Food Service, 

, 779 (Kan. 2021).

  Johnson involved Kansas’s version of subsections 101(3)(a)(I) and

  101(3.7), which reads that “[t]he extent of permanent partial general

  disability shall be . . . based on [the Guides].” 

 (quoting 

). The court reasoned that “[u]sing the phrase

  ‘based on’ typically signifies a guideline rather than a mandate.” Id.

  at 780. In other words, “[t]he use of the phrase ‘based on’ indicates


                                     9
  the [l]egislature intended the [Guides] to serve as a standard

  starting point . . . .” Id.; cf. Hughes v. United States, 

,

  ___, 

 (2018)(A court “imposes a sentence that

  is ‘based on’ a [federal Sentencing] Guidelines range [in a criminal

  case] if the range was a basis for the court’s exercise of discretion in

  imposing a sentence.”).

¶ 21   Second, in addition to referring to the revised third edition of

  the Guides, subsection 101(3)(a)(I) states that “impairment rating

  guidelines . . . shall [also] be based on . . . medical treatment

  guidelines and utilization standards.” According to the physician,

  normalization has been taught to doctors for at least ten years —

  which suggests that normalization is a utilization standard — and it

  is discussed in the Desk Aid — which indicates that normalization

  is found in medical treatment guidelines. The Desk Aid therefore

  supplies guidance for doctors who are determining permanent

  impairment ratings.

¶ 22   But, claimant asserts, by promulgating the Desk Aid, the

  Division of Workers’ Compensation adopted a “law[] that [was]

  contrary to” subsections 101(3)(a)(I) and 101(3.7). See Suetrack

  USA v. Indus. Claim Appeals Off., 

 (Colo. App.


                                     10
  1995)(“Any regulation that is contrary to or inconsistent with the

  regulatory authorizing statute is void.”).

¶ 23   The Division might have set up such a conflict (1) if it had

  required doctors to follow the normalization process, as described in

  the Desk Aid; or (2) if it had issued a rule under the rule-making

  process of the Administrative Procedure Act, see § 24-4-103(1),

  C.R.S. 2020, that incorporated the contents of the Desk Aid, and

  this rule “establishe[d] a norm that commands a particular result in

  all applicable proceedings,” Hammond v. Pub. Emps.’ Retirement

  Ass’n, 

 (Colo. App. 2009).

¶ 24   But it did not set up such a conflict. Rather, using the same

  reasoning that supports our conclusion that the phrase “based on”

  does not restrict doctors to using the revised third edition of the

  Guides, we further conclude that the phrase “based on” does not

  require doctors to use “medical treatment guidelines and utilization

  standards” such as the Desk Aid instead of the revised third

  edition. See § 8-42-101(3)(a)(I).

¶ 25   The Desk Aid was not issued pursuant to the rule-making

  process, and there is no indication that the Division intended it to

  serve as a rule that would mandate a particular result in all cases.


                                      11
  Rather, the Desk Aid simply “establishes guidelines that do not

  bind the agency to a particular result.” Hammond, 

.

  For example, when discussing normalization, the Desk Aid states

  that “the Division consider[s] it reasonable to compare both

  extremities when there are specific conditions which would make the

  opposite, non-injured extremity serve as a better individual

  baseline.” (Emphasis added.) In this way, the Desk Aid serves as

  an “interpretive rule” as described by section 24-4-103(1), which is

  not subject to the formal rule-making process, including notice and

  an opportunity for comments, and which is “not meant to be

  binding . . . .” See Hammond, 

. Indeed, the panel

  concluded that the Desk Aid was an interpretive rule, and we agree.

¶ 26   Third, it has long been the law that the two inquiries into

  whether, in the course of conducting a division-sponsored

  independent medical examination, a doctor properly applied the

  Guides, and whether the subsequent rating was overcome by clear

  and convincing evidence, “are questions of fact.” Wackenhut Corp.

  v. Indus. Claim Appeals Off., 

 (Colo. App. 2000);

  see also McLane W. Inc. v. Indus. Claim Appeals Off., 

 (Colo. App. 1999)(“Whether the . . . physician has properly


                                   12
  applied the . . . Guides in ascertaining the impairment rating and

  whether that rating has been overcome by clear and convincing

  evidence are questions of fact to be determined by” the judge.).

  And, because the appropriate application of the Guides is a

  question of fact, a panel will not set aside a judge’s decision if it is

  supported by substantial evidence in the record. See Wackenhut,

  

; see also Leewaye v. Indus. Claim Appeals Off., 

 (Colo. App. 2007)(“We are bound by the [judge’s]

  factual determinations . . . if they are supported by substantial

  evidence in the record.”).

¶ 27   Yet, in the twenty years since Wackenhut and McLane were

  issued, the legislature has not amended subsection 101(3)(a)(I) or

  subsection 101(3.7) to change this law by limiting doctors’

  discretion or by requiring them to comply strictly with the revised

  third edition of the Guides. Indeed, despite amendments to one or

  both of these subsections in 2004 and 2009, the statutory

  statement that impairment ratings are to be “based on” the revised

  third edition remains unchanged. Because the legislature is

  presumed to be aware of judicial statutory interpretations, “where,

  as here, there is no express intent to repeal or abrogate existing law


                                      13
  . . . we presume that the legislature ‘accepted and ratified [our]

  prior judicial construction’ of the statute.” Sullivan v. People, 

 (quoting People v. Swain, 

 (Colo.

  1998)).

¶ 28   To summarize, the Desk Aid states that the determination of

  whether normalization is necessary rests squarely with the

  examining doctor, who “may” follow normalization procedures

  “when deemed appropriate.” In our view, the Desk Aid does not

  reject the revised third edition of the Guides; rather, it expands on

  the factors upon which doctors may, in their discretion, base

  impairment ratings. And, as we have pointed out above, the

  legislature gave doctors that discretion by using the phrase “based

  on” in subsections 101(3)(a)(I) and 101(3.7). Given the legislature’s

  acceptance of this medical discretion, and its long-term acceptance

  of Wackenhut and McLane, we conclude that the panel’s

  interpretation of subsections 101(3)(a)(I) and 101(3.7) is consistent

  with the legislature’s intent. We therefore will not set it aside. See

  Zerba v. Dillon Cos., 

 (“The [p]anel’s

  interpretation [of the Workers’ Compensation Act] will . . . be set

  aside only ‘if it is inconsistent with the clear language of the statute


                                     14
  or with the legislative intent.’” (quoting Support, Inc. v. Indus. Claim

  Appeals Off., 

 (Colo. App. 1998))).

¶ 29   Claimant’s two remaining contentions do not persuade us to

  reach a different conclusion.

¶ 30   Initially, claimant asserts, without citing any legal authority,

  that, by recommending normalization, “the Desk Aid specifically

  discriminates against individuals based on age and body habitus

  [physical build],” ostensibly because older workers are more prone

  to arthritis and cannot “remember every injury that they have

  suffer[ed] to the nonindustrial injured limb.” But he does not

  articulate how the panel’s interpretation of subsections 101(3)(a)(I)

  and 101(3.7) discriminates against him and other similarly situated

  workers. And he does not offer any examples illustrating how the

  physician, the Division, the judge, or the panel treated him

  differently or how his individual circumstances produced an

  unequal application of subsections 101(3)(a)(I) and 101(3.7). We

  decline to address this contention because he has not developed it.

  See Sanchez v. Indus. Claim Appeals Off., 

  (declining to address “underdeveloped arguments” (quoting

  Antolovich v. Brown Grp. Retail, Inc., 

 (Colo. App.


                                     15
  2007))); Meza v. Indus. Claim Appeals Off., 

  (same).

¶ 31   Finally, claimant theorizes that the physician wrongly thought

  that he was required to follow the normalization procedure

  described in the Desk Aid even though its use is discretionary. But

  he does not develop this assertion either. Rather, he simply raises

  it, without offering legal authority or citations to the record to

  support it. We therefore will not address it. See Mauldin v. Lowery,

  

, 

 (1953)(“It is the task of

  counsel to inform us, as required by our rules, both as to the

  specific errors relied on and the grounds and supporting facts and

  authorities therefor.”); see also Sanchez, ¶ 62 (“‘Given the dearth of

  legal grounds offered,’ we decline to address claimant’s remaining

  arguments.” (quoting Meza, ¶ 38)).

¶ 32   The order is affirmed.

       JUDGE ROTHENBERG and JUDGE TAUBMAN concur.




                                     16